Petland Motion To Dismiss

Case 1:17-cv-02828-MHC Document 16-1 Filed 09/29/17 Page 1 of 36
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROSALBA CISNEROS, on behalf of

herself and all others similarly situated,
Plaintiff,
CIVIL ACTION FILE
v.
NO. 1:17-cv-02828-MHC
PETLAND, INC., BKG PETS, INC.,
PETS BKG LLC, PAWSITIVE
SOLUTIONS, INC.,
Defendants
BRIEF IN SUPPORT OF DEFENDANTS BKG PETS, INC.S AND

PETS BKG LLCS MOTION TO DISMISS
John E. Floyd
Steven J. Rosenwasser
Fredric J. Bold, Jr.
BONDURANT MIXSON & ELMORE, LLP
3900 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
Attorneys for Defendants BKG Pets, Inc. and Pets BKG LLC
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TABLE OF CONTENTS
INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1
STATEMENT OF FACTS AND PLAINTIFFS ALLEGATIONS ....................................3
A. Petland Kennesaw .............................................................................3
B. Plaintiffs Allegations........................................................................4
ARGUMENT AND CITATION TO AUTHORITY .........................................................9
I. Plaintiff Has Not Properly Pled Her Alleged Fraud Scheme ..................9
A. Plaintiffs RICO Fraud Claims Must Satisfy Both

Twomblys and Rule 9(b)s Heightened Pleading Standards ............9
B. The Complaints Fails to Satisfy Twombly/Iqbal or

Rule 9(b) ..........................................................................................10
i. Plaintiffs Complaint Fails Rule 9(b)s Pleading

Standard ...................................................................................10
ii. Plaintiff Ignores the Obvious Alternative Explanation .......15
II. The Complaint Fails to Plead that Petland Kennesaw Conducted

the Affairs of the Alleged Enterprise or Had an Unlawful Purpose..........16
A. Plaintiff Must Allege Facts Showing that Petland Kennesaw

Took Part in Directing the Affairs of the Alleged Enterprise .........17
B. Plaintiff Fails to Allege Facts Showing that Petland

Kennesaw Took Part in Directing the Affairs of the Alleged
Enterprise.........................................................................................18
III. Plaintiffs Allegations of Non-Disclosure Cannot State RICO

Claims ........................................................................................................20
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IV. The Complaint Fails to Plead a Pattern of Racketeering Acts ..................21
V. The Court Should Also Dismiss Plaintiffs RICO Conspiracy

Claims ........................................................................................................23
VI. Plaintiffs Georgia RICO Claim Fails Because No Federal RICO

Violation Exists .........................................................................................25
CONCLUSION ........................................................................................................25
1614237.1
ii
TABLE OF AUTHORITIES
CASES
AARP v. Am. Family Prepaid Legal Corp., Inc.,

604 F. Supp. 2d 785 (M.D.N.C. 2009) ...........................................................16
Almanza v. United Airlines, Inc.,

851 F.3d 1060 (11th Cir. 2017) ............................................................... 13, 16
Ambrosia Coal & Constr. Co. v. Morales,

482 F.3d 1309 (11th Cir. 2007) ............................................................... 10, 13
American Dental Assn v. Cigna Corp.,

605 F.3d 1283 (11th Cir. 2010) ......................................................................18
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................. 15, 22
Avery v. Chrysler Motors Corp.,

214 Ga. App. 602, 448 S.E.2d 737 (1994) .....................................................10
Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ................................................................. 9, 10, 15, 19, 22
Bivens v. Roberts,
No. 208CV026, 2009 WL 891859 (S.D. Ga. Mar. 31, 2009) ........... 17, 18, 22
Bonilla v. Volvo Car Corp.,

150 F.3d 62 (1st Cir. 1998) .............................................................................21
Brooks v. Blue Cross & Blue Shield of Fla., Inc.,

116 F.3d 1364 (11th Cir. 1997) ......................................................... 10, 18, 22
Byrne v. Nezhat,
261 F.3d 1075 (11th Cir. 2001) ........................................................................2
1614237.1
iii
Cal. Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.,

818 F.2d 1466 (9th Cir. 1987) ................................................................. 20, 21
Chandler v. Secy of Fla. Dept of Transp.,

695 F.3d 1194 (11th Cir. 2012) .................................................................. 9-10
Chi v. MasterCard International, Inc.,

No. 1:14-CV-614-TWT, 2014 WL 5019917 (N.D. Ga. Oct. 7, 2014) ...........24
Club Car, Inc. v. Club Car (Quebec) Import, Inc.,

276 F. Supp. 2d 1276 (S.D. Ga. 2003) ...........................................................10
Crenshaw v. Lister,
556 F.3d 1283 (11th Cir. 2009) ......................................................................12
Delta Air Lines, Inc. v. Wunder,

No. 1:13-CV-3388-MHC, 2015 WL 11347586 (N.D. Ga. 2015) ..................25
Feldman v. American Dawn, Inc.,

849 F.3d 1333 (11th Cir. 2017) ......................................................................25
Flagg v. First Premier Bank,

No. 1:15-CV-324-MHC, 2017 WL 2703856 (N.D. Ga. June 7, 2017) ..........24
Fuller v. Home Depot Servs., LLC,

512 F. Supp. 2d 1289 (N.D. Ga. 2007) ...........................................................24
H.J. Inc. v. Nw. Bell Tel Co.,

492 U.S. 229 (1989) ................................................................................. 22, 23
Handeen v. Lemaire,
112 F.3d 1339 (8th Cir. 1997) ........................................................................17
In re Countrywide Fin. Corp.,

601 F. Supp. 2d 1201 (S.D. Cal. 2009) ................................................................21
J&D Intl Trading (H.K.) Ltd. v. MTD Equip., LLC,

No. 1:13-CV-2526-RWS, 2014 WL 1683375 (N.D. Ga. Apr. 28, 2014) ......24
1614237.1
iv
Jackson v. Bellsouth Telecomms.,

372 F.3d 1250 (11th Cir. 2004) ......................................................... 22, 23, 24
Langford v. Rite-Aid of Ala.,

231 F.3d 1308 (11th Cir. 2000) ......................................................................20
Lawrie v. Ginn Development Co.,

656 F. Appx 464 (11th Cir. 2016) .................................................................24
Martinelli v. Petland, Inc.,

No. CV-09-529, 2009 WL 2424655 (D. Ariz. Aug. 7, 2009) ............... 2, 3, 21
Metro. Transp. Auth. v. Contini,

No. 4-CV-0104, 2005 WL 1565524 (E.D.N.Y. July 6, 2005) .......................17
Montoya v. PNC Bank, N.A.,

No. 14-20474, 2014 WL 4248208 (S.D. Fla. Aug. 27, 2014) ........................17
Parm v. Natl Bank of Cal., N.A.,

242 F. Supp. 3d 1321 (N.D. Ga. 2017) ...........................................................16
Pasha v. State,
273 Ga. App. 788, 616 S.E.2d 135 (2005) .....................................................24
Perret v. Wyndham Vacation Resorts, Inc.,

889 F. Supp. 2d 1333 (S.D. Fla. 2012) ...........................................................22
Ray v. Spirit Airlines, Inc.,

836 F.3d 1340 (11th Cir. 2016) ......................................................................16
Reves v. Ernst & Young,

507 U.S. 170 (1993) ..................................................................... 17, 18, 19, 20
Reynolds v. E. Dyer Dev. Co.,

882 F.2d 1249 (7th Cir. 1989) ........................................................................20
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v
Snow v. DirecTV, Inc.,

450 F.3d 1314 (11th Cir. 2006) ......................................................................10
Thrailkill v. Champion Ford, Inc.,

776 F. Supp. 1486 (D.N.M. 1991) ..................................................................13
United Food & Commercial Workers Unions v. Walgreen Co.,

719 F.3d 849 (7th Cir. 2013) .................................................................... 19-20
United States v. Browne,

505 F.3d 1229 (11th Cir. 2007) ................................................................ 23-24
Windsor v. Huber,
No. 1:11-CV-2326-TWT, 2011 WL 4436491 (N.D. Ga. Sept. 21, 2011) .....25
STATUTES
FED. R. CIV. P. 9(b) ............................................................................... 1, 9, 10, 22
FED. R. CIV. P. 12(b)(6) ...................................................................................1, 25
7 U.S.C. 2131 ......................................................................................................3
18 U.S.C. 1961 ..................................................................................................22
18 U.S.C. 1962 ..............................................................................................9, 17
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vi
Defendants BKG Pets, Inc. and Pets BKG LLC (Petland Kennesaw) move
to dismiss plaintiffs civil RICO complaint under Fed. R. Civ. P. 12(b)(6) and 9(b).
INTRODUCTION AND SUMMARY OF ARGUMENT
California animal-rights activists filed this lawsuit on the false premise that
the ordinary business operations of one of the nations largest pet stores and some
of its commercial partners were conducted with criminal intent as part of a RICO
enterprise. Through press releases and social media, the Animal Legal Defense
Fund (ALDF) (who signed this complaint) and its allies have trumpeted this
lawsuit as part of their work[] across the country to combat puppy mills from
multiple legal channels.1 But whatever concerns the ALDF may have about so-
called puppy mills, and putting aside that Petland denies purchasing puppies
from any unlawful puppy mill, the ALDF does not and cannot cite any law or
regulation that Petland allegedly violated by purchasing puppies from any of its
vendors. Thus, unable legitimately to challenge Petlands purchasing practices, the
ALDF, in an improper effort to gain press and try to put pressure on Petland,
attempts to contrive RICO allegations on behalf of a purported nationwide class,
based on the unfortunate death of one dog. It is clear that plaintiff and her
1
See http://aldf.org/cases-campaigns/features/what-is-the-animal-legal-defense-
fund-doing-about-puppy-mills/.
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supporters simply dislike Petlands lawful business and are willing to use this case
as a soapbox in service of their social-policy goals.
Specifically, plaintiffs complaint asserts that Petland, PAWSitive, every
Petland franchisee, and every Petland preferred veterinarian in the country passed
off fraudulent health certificates on every puppy or kitten sold because those
animals were allegedly raised in puppy mills. See Compl. 23, 65. Based solely
on the alleged sources of those animals, plaintiff contends that defendants knew
they may very well have latent diseases, charged prices that were too high, and
tried to conceal that fraud from customers. See id. (emphasis added).
Plaintiffs complaint ignores the Eleventh Circuits repeated admonition that
[p]articularly with regard to civil RICO claims, plaintiffs must stop and think
before filing them. Byrne v. Nezhat, 261 F.3d 1075, 1115 (11th Cir. 2001). Had
plaintiff done so here, she would have realized that another United States District
Court has already considered and dismissed the same frivolous RICO class action.
In 2009, activists from a sister animal-rights group sued Petland on behalf of a
putative class forjust like hereorchestrat[ing] a scheme to defraud
consumers and facilitating the fiction that a consumers new puppy is not a
sickly and/or dying puppy mill puppy. Martinelli v. Petland, Inc., No. CV-09-
529, 2009 WL 2424655, at *1 (D. Ariz. Aug. 7, 2009) (dismissing complaint).
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Recognizing that those plaintiffs failed to plead the supposed fraudulent scheme
with the required particularity and that Petland had no duty to make the
disclosures the activists preferred, the Court dismissed plaintiffs RICO claims.
Id. at **3, 6. The Court should treat this sequel the same way.
STATEMENT OF FACTS AND PLAINTIFFS ALLEGATIONS
A. Petland Kennesaw
For almost two decades, defendant Petland Kennesaw has operated as a
family-owned and operated local pet store in Kennesaw, GA. 2 In addition to pets,
the store also sells pet foods, supplies, and services, such as grooming and training.
Petland Kennesaw receives its puppies from three primary sources: (i) United
States Department of Agriculture licensed breeders and distributors; (ii) hobby
breeders as defined by the Animal Welfare Act, 7 U.S.C. 2131; and (iii) locally
adopted, vet-checked pets.3 Petland is a global leader in pushing the industry to
new levels and encouraging the highest standards of pet care in [its]
communities.4 Petland Kennesaw is a franchisee of defendant Petland, which was
founded in 1967 and is a successful operator and franchisor of 131 U.S. stores.5
2
http://www.petlandkennesaw.com.
3
http://www.petlandkennesaw.com/kennesaw-puppies-faqs/.
4
http://www.petlandkennesaw.com/.
5
http://www.petland.com/about/index.htm; https://en.wikipedia.org/wiki/Petland.
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B. Plaintiffs Allegations
The Defendants. The complaint alleges that Petland works with several kinds
of business partners, which, according to plaintiff, are all participants in a RICO
scheme. Defendant Petland Kennesaw is the franchise location where plaintiff
purchased the one puppy referenced in the complaint. Defendant PAWSitive
Solutions, Inc. (PAWSitive) is alleged to act as Petlands customer claims
manager and exists to sell additional services and programs to Petland
customers. Compl. 24-25. The complaint also referencesbut does not name
as defendantsMy Pets Vet Animal Clinic, LLC (My Pets Vet) and Dr. Walton
Waller, whom plaintiff alleges performs pre-sale health exams and serves as the
preferred veterinarian under Petland Kennesaws Limited Puppy Purchase
Contract. Id. 21-22, Ex. A. 6
Plaintiffs Dog. Plaintiff alleges that on December 10, 2015 she bought a
dog from Petland Kennesaw for $2,400 plus a $500 membership in a Puppy for a
Lifetime program. Id. 29. Plaintiff alleges that, after subsequent treatment at My
Pets Vet, Dr. Waller reported that plaintiffs dog died on December 19, 2015. Id.
32-33. Plaintiff alleges that Dr. Waller concluded that the dog died of liver
6
Plaintiff provides no specific allegations about (nor names as defendants) any of
Petlands other 130 franchisees across the country, each of which is alleged to have
its own preferred veterinarian (none of whom are defendants).
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disease but that a different veterinarian hired by plaintiff believed the dog died
from parvovirus. Id. 33, 36.
Summary of the Alleged Fraudulent Scheme. Plaintiff summarizes the
alleged fraudulent scheme on which she bases her complaint as follows:
At its core, Petlands fraudulent scheme is designed to allow it to charge

premium prices for puppies and kittens customers believe are certified to
be healthy and backed up by warranties and services, when Petland knows
full well it is selling puppy and kitten mill-sourced animals prone to illnesses
and other defects, with warranties and offers of service not worth the
paper they are written on. Plaintiff and all other Class members therefore
suffered economic harm by paying a price for a premium product, but not
receiving the benefit of the bargain. 65.
The Source of Petlands Puppies and Kittens. Plaintiff says defendants
alleged fraudulent scheme can be traced to Petlands animal sourcing practices
from unnamed puppy and kitten mills. Id. 38. While plaintiff concedes that
many of the puppy mills are licensed by the USDA, she nonetheless
contends that it is generally known that these facilities may produce animals
with significant health defects. Id. 40. Without defining puppy mill or
identifying any specific puppy mill, plaintiff alleges that puppy mills often
degenerate to a point of disregard for animal welfare and produce animals that are
highly prone to debilitating and life-threatening conditions. Id. 41. Plaintiff
quotes snippets of testimony from a former preferred veterinarian for Petland
Kennesaw, Michael Good, who claims that the overwhelming majority of

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Petland Kennesaws animals arrived sick due to the conditions in which they were
raised. Id. 43. Plaintiff alleges that Dr. Good resigned as preferred veterinarian
for Petland Kennesaw. Id. 48. Dr. Goods own affidavit states that he stopped
working as a veterinarian for Petland Kennesaw in 2005, well before the statute of
limitations period at issue here. See Exhibit A 5. In addition, the complaint fails
to reveal that Dr. Goods referenced testimony was procured by the defendant in
Petland Kennesaws currently pending defamation lawsuit against a social-media
activist represented by the same counsel as has appeared for plaintiff here, which
plaintiff calls an unrelated case. Compl. 43.
Petlands Puppy Examinations and Sales. Plaintiff alleges that Petlands
franchisees obtain their animals for $50 to $200 and sell them at retail for
$2,000 to $3,000. Id. 38. Before a pet sale, plaintiff alleges [u]pon
information and belief that Petland pays a preferred veterinarian a fixed rate each
month in exchange for their agreement to inspect and certify pets as healthy. Id.
46. Plaintiff alleges that the veterinarians are financially incentivized to certify
the animals as healthy due to their compensation arrangement and because
Petland already owns the animals when the veterinarian inspects them. Id. 5.
For each purchase, plaintiff alleges that the consumer executes a Limited
Puppy Purchase Contract with the franchisee stating that, for example, the pet has
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been vet checked twice before being sold. Id. 45. Plaintiff also says that a
Veterinarian Health Exam report accompanies each sale stating that the animal is
free of any internal or external parasites and healthy and fit for adoption. Id.
Plaintiff does not allege that any defendant performs the examination or signs the
report. Plaintiff attaches the one exam report from her puppy; she makes no
allegations about any other specific animals exam report.
Petlands Corporate Structure. Plaintiff says that Petlands top-down
corporate structure proves that it has a coordinated scheme to defraud customers
with bogus health certifications and warranties. Id. 51. Plaintiff points to a
Petland franchise agreement and says that Petland and its franchisees have
uniform standards, methods, [and] techniques in operating their businesses. Id.
And plaintiff allegeswithout alleging the substance of any trainingthat
franchisee training is extensive. Id. 52, 20.
Petlands Practices to Allegedly Conceal Its Fraudulent Scheme. Plaintiff
alleges three additional business practices that she says Petland employs to hide its
alleged fraudulent scheme. First, Petland requires its customers to use PAWSitive
. . . as the point of contact for any health issues with their new pet. Id. 55
(emphasis added). Second, plaintiff alleges that by using a preferred veterinarian
network, Petland supposedly requir[es] customers to use Petland preferred
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veterinarians and restrict[s] them from going to independent veterinarians that are
not controlled by Petland. Id. 57-58. Third, plaintiff says that Petland gives
customers instructional sheets about hypoglycemia and canine cough that are
designed to conceal Petlands fraud by dissuading customers from seeking
immediate veterinary assistance for potentially life-threatening conditions. Id.
59-64. Plaintiff does not allege that any statement on either sheet is false.
RICO Claims. According to plaintiff, this alleged fraudulent scheme
transforms the defendants, all other Petland franchisees, and all other Petland
preferred veterinarians into an association-in-fact RICO enterprise. Id. 81.
As for predicate acts of racketeering, plaintiff relies solely on allegations of
mail and wire fraud. Id. 96-103. According to plaintiff, defendants have
committed thousands of acts of mail and wire fraud through the (i)
communication of Petland, Inc.s policies and procedures; (ii) exchange of
financial data; (iii) payments; and (iv) ongoing receipt of revenues. Id. 99.
Other than referring to four credit-card charges or communications relating to
plaintiffs purchase of her one dog at Petland Kennesaw in December 2015, the
complaint does not identify any specific instances of alleged mail or wire fraud.
On behalf of herself and a purported nationwide class and Georgia subclass,
see id. 66, 68, plaintiff asserts three RICO claims. Count 1 asserts a violation of
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18 U.S.C. 1962(c), which makes it unlawful for any person employed by or
associated with any enterprise . . . to conduct or participate, directly or indirectly,
in the conduct of such enterprises affairs through a pattern of racketeering activity
. . . . Count 2 asserts a conspiracy to violate Section 1962(c), in violation of 18
U.S.C. 1962(d). And Count 3 asserts identical violations of Georgias RICO law.
ARGUMENT AND CITATION TO AUTHORITY
I. Plaintiff Has Not Properly Pled Her Alleged Fraud Scheme.
Plaintiff can only avoid dismissal by pleading plausibly and with
particularity sufficient facts establishing thatrather than merely operating a pet-
storePetland and the companies it works with are actually perpetrating a
nationwide RICO scheme with criminal intent. Plaintiff does not meet her burden.
A. Plaintiffs RICO Fraud Claims Must Satisfy Both Twomblys and

Rule 9(b)s Heightened Pleading Standards.
To survive a motion to dismiss under Twombly/Iqbal, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When a plaintiff ha[s] not nudged [her] claims across the line from conceivable to
plausible, [her] complaint must be dismissed. Id. Although a court is required to
accept well-pled facts as true when evaluating a motion to dismiss, it is not
required to accept the plaintiffs legal conclusions. Chandler v. Secy of Fla. Dept
1614237.1
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of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012). Nor does the Court accept as
true unwarranted deductions of fact[] or legal conclusions masquerading as facts.
Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006).
In addition, [b]ecause of the specificity of the RICO statute and the stigma
associated with charges of racketeering, plaintiff must plead her entire complaint
with enhanced specificity under Rule 9(b). Club Car, Inc. v. Club Car (Quebec)
Import, Inc., 276 F. Supp. 2d 1276, 1283 (S.D. Ga. 2003).
To satisfy the Rule 9(b) standard, RICO complaints must allege: (1) the
precise statements, documents, or misrepresentations made; (2) the time and
place of and person responsible for the statement; (3) the content and
manner in which the statements misled the Plaintiffs; and (4) what the
Defendants gained by the alleged fraud.
Ambrosia Coal & Constr. Co. v. Morales, 482 F.3d 1309, 1316-17 (11th Cir. 2007)
(emphasis added). It also bears emphasis that RICO requires plaintiffs to allege
indictable criminal conduct, Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116
F.3d 1364, 1381 (11th Cir. 1997), not merely unfair or deceptive schemes. See also
Avery v. Chrysler Motors Corp., 448 S.E.2d 737, 738 (1994) (same).
B. The Complaint Fails to Satisfy Twombly/Iqbal or Rule 9(b).
i. Plaintiffs Complaint Fails Rule 9(b)s Pleading Standard.
Plaintiffs complaint suffers from fatal pleading deficiencies at every step.
First, Plaintiff alleges that Petland and Petland Kennesaw knowingly
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sourced puppies from inhumane puppy mills that were unhealthy. Compl.
3-5. The term puppy mill is not self-defining, and plaintiff offers no
definition. In any event, the complaint contains no particularities whatsoever.
Indeed, among other deficiencies, the complaint (i) fails to identify a single so-
called puppy mill used by any defendant; (ii) offers no details about the
condition of any particular puppy mill used by any defendant; (iii) alleges no
details about the health of any specific puppy from a puppy mill; (iv) makes no
allegations about how many puppies Petland Kennesaw obtained from puppy
mills versus other sources; and (v) includes no allegations plausibly supporting
the conclusory allegation that all defendants knew that every puppy obtained from
a puppy mill was unhealthy. Plus, the complaint says nothing about any specific
kitten. Rather, plaintiff asks the Court to conclude that defendants have operated a
successful nationwide business for decades while selling nothing but sick pets.
Second, plaintiff alleges that Petland Kennesaw provides certifications of its
animals health that it knows are false. But again, plaintiff provides no
allegationsliterally noneto support that claim. Indeed, wholly absent from the
complaint are any allegations that (i) any defendant instructed a veterinarian not to
actually conduct health examinations; (ii) any defendant instructed a veterinarian
to lie; or (iii) any specific Petland employee allegedly knew all examinations were
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false. And, not surprisingly, Plaintiff does notand cannotallege any specific
facts evidencing that any health examination that was performed was false,
misleading, or otherwise improper. In fact, the only examination the complaint
even references is for plaintiffs own puppy, and even the claims as to that
examination are wholly speculative and conclusory; i.e., plaintiff claims that
Petland knew her puppy was unhealthy but fails to identify a single fact in support
of that claim other than suggesting that the puppy came from a puppy mill.
Plaintiff also mischaracterizes what the examination report is. While she
calls it a certification or warranty, the actual document shows only the results of
the veterinarians examination on a particular date. See Exhibit B (At the time of
examination, I have found this puppy to be . . . .). Although defendants supposed
blanket certification of healthy pets is the central element in plaintiffs fraud
claim, the Limited Puppy Purchase Contract attached to the complaint confirms
that neither Petland, Inc. nor Petland Kennesaw provides any such blanket
guarantee of health. Rather, the contract states that all puppies are sold as pet
quality only and details the specific warranty provisions, vet services, and refunds
provided by Petland Kennesaw for certain conditions and for certain periods of
time. Compl. Ex. A; see Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009)
(It is the law in this Circuit that when the exhibits contradict the general and
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conclusory allegations of the pleading, the exhibits govern.).
Third, plaintiff alleges that Petland used its top-down corporate structure,
franchise agreements and training to effectuate its allegedly uniform fraudulent
scheme throughout all franchisees and veterinarians. But those wholly innocuous
allegations establish only that defendants operated a business with a franchisor and
franchisees.7 Tellingly, although it is required under Ambrosia Coal, plaintiff
alleges no names, times, places, or statements by anyone ever discussing that
Petlands franchise activities are actually tools of fraud. No facts are alleged to
support plaintiffs conclusion that the entirely predictable statements in a franchise
agreement about uniform standards and operating methods actually refer to
committing fraud versus operating a business under a common brand. 8 No facts
support the assertion that Petlands alleged unique system of operating its
successful business includes committing fraud. And no facts alleging the content of
any training, much less that the training constituted instruction in fraud. Rather,
plaintiff asks the Court simply to presume that features present in virtually every
7
See Thrailkill v. Champion Ford, Inc., 776 F. Supp. 1486, 1488 (D.N.M. 1991)
(rejecting imposing civil RICO liability based upon the mere presence of a
franchisee/franchisor relationship without more).
8
See Almanza v. United Airlines, Inc., 851 F.3d 1060, 1073 (11th Cir. 2017)
(dismissing RICO fraud claim where the contract terms plaintiff relied on say
nothing about an illicit enterprise or a fraudulent scheme).
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franchisor-franchisee model in the country plausibly allege fraud. They do not.
Fourth, plaintiff alleges that Petland is able to hide its alleged fraudulent
scheme because it requir[es] customers to use Petland preferred veterinarians and
restrict[s] them from going to independent veterinarians that are not controlled by
Petland. Compl. 57 (emphasis added). But the contractual language attached to
the complaint says the opposite: We understand that you may have a personal
relationship with a different veterinarian and because of this will provide for up to
25% reimbursement of the noncontracted veterinarian costs. Compl. Ex. A. That
the contract provides greater warranty coverage for a preferred veterinarian versus
an out-of-network veterinarian does not evidence fraud and is, in fact, a feature
in common with most health-insurance plans for humans.
Last, plaintiff alleges that Petland Kennesaw and its co-defendants engaged
in a scheme so as to avoid having to honor [their] warranties. Compl. 82. But
plaintiff does not allege a single instance of any defendant refusing to honor any
warranty in the Limited Puppy Purchase Contract (the only applicable warranties
alleged). While plaintiff may not like the terms of the warranty that she agreed to,
no well-pled facts allege that any defendant had a preexisting criminal intent to
refuse to honor any warranty. Indeed, the complaint pointedly fails to allege that
any defendant has failed to honor a warranty in any specific instance.
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ii. Plaintiff Ignores the Obvious Alternative Explanation.
The Court must also dismiss plaintiffs complaint because she has failed to
meet her burden to rebut the obvious alternative explanation that exists.
Twombly, 550 U.S. at 567; Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009) (As
between that obvious alternative explanation for the arrests and the purposeful,
invidious discrimination respondent asks us to infer, discrimination is not a
plausible conclusion.).
Particularly given the factual omissions, conclusory pleading, and
contradictions discussed above, plaintiff has failed to adequately allege that
defendants are operating a RICO scheme rather than simply operating their
businesses. Plaintiff has offered no plausible explanation for why any of the
following allegations plausibly evidence fraud rather than being simply part and
parcel of the defendants ordinary business operations:
Petland has a top-down corporate structure and also insists upon uniform
standards, methods, techniques, and expertise, procedures, and specifications
. . . . 51.
Petland franchisee training is extensive . . . . Petland, Inc.s website touts
these extensive training programs for its franchisees, promising to help
franchisees build[] a team of Pet Counselors and Animal Care Technicians
to help [them] carry out [their] business plan. 52.
Petland gives customers two instructional sheets regarding hypoglycemia
and canine cough (also called kennel cough) . . . . The handout makes clear
that illness and death due to hypoglycemia is the customers responsibility or
fault, not Petlands. 59, 62.
1614237.1
15
Sales are commission-based with each employee receiving a percentage of

the animals purchase price. Franchisees are also rewarded with bonuses for
meeting yearly sales goals. . . . [S]ome of these profits also flow back to
Petland, Inc., as weekly royalty fees of 4.5% of gross revenues. 54.
The sole purpose of the scheme was to keep costs down for Petland and
enable it to churn out animal and warranty sales, generating substantial
revenue for members of the Enterprise. 82.
Absent specific pleadings showing fraud, the obvious alternative explanation for
this alleged conduct is that defendants are operating a lawful business. The federal
courts soundly reject turning such ordinary business operations into a RICO
claim. 9
[A]llowing such pleadings to go forward would turn every claim of corporate
fraud into a RICO violation. Spirit, 836 F.3d at 1357.
II. The Complaint Fails to Plead that Petland Kennesaw Conducted the
Affairs of the Alleged Enterprise or Had an Unlawful Purpose.
The complaint also fails to allege with specificity necessary elements of
RICO, any one of which requires the Court to dismiss the entire complaint. See,
9
See, e.g., Almanza v. United Airlines, Inc., 851 F.3d 1060, 1071 (11th Cir. 2017)
(dismissing RICO claims where Plaintiffs have not explained why their economic
model should be accepted as plausible); Ray v. Spirit Airlines, Inc., 836 F.3d
1340, 1353 (11th Cir. 2016) (rejecting RICO liability on basis of wholly innocent
activity undertaken as a course of regular business for [the co-defendant]); Parm
v. Natl Bank of Cal., N.A., 242 F. Supp. 3d 1321, 1348 (N.D. Ga. 2017)
(dismissing complaint where allegations, while creative, essentially attempt to
recast a contractual relationship as a RICO enterprise); AARP v. Am. Family
Prepaid Legal Corp., Inc., 604 F. Supp. 2d 785, 796 (M.D.N.C. 2009)
(contractual relationships are not ordinarily the stuff of . . . RICO enterprises).
1614237.1
16
e.g., Montoya v. PNC Bank, N.A., No. 14-20474, 2014 WL 4248208, at *20-21
(S.D. Fla. Aug. 27, 2014); Bivens v. Roberts, No. 208CV026, 2009 WL 891859, at
*10 (S.D. Ga. Mar. 31, 2009).
A. Plaintiff Must Allege Facts Showing that Petland Kennesaw Took

Part in Directing the Affairs of the Alleged Enterprise.
Count 1 asserts that Petland Kennesaw violated 18 U.S.C. 1962(c).10
Section 1962(c) liability depends on showing that the defendants conducted or
participated in the conduct of the enterprises affairs, not just their own affairs.
Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). The Reves rule is built upon a
recognition that Congress did not mean for 1962(c) to penalize all who are
employed by or associated with a RICO enterprise, but only those who, by virtue
of their association or employment, play a part in directing the enterprises
affairs. Handeen v. Lemaire, 112 F.3d 1339, 1348 (8th Cir. 1997) (emphasis
added). There is a difference between actual control over an enterprise and mere
association with an enterprise; in light of that difference, the test for liability is not
involvement but control. Metro. Transp. Auth. v. Contini, No. 4-CV-0104, 2005
WL 1565524, at *4 (E.D.N.Y. July 6, 2005) (emphasis added). Thus, plaintiff must
10
This statute makes it unlawful for any person employed by or associated with
any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of
such enterprises affairs through a pattern of racketeering activity . . . .
1614237.1
17
allege facts supporting the allegation that the . . . defendants directed the
enterprises affairs. Bivens, 2009 WL 891859, at *10.
B. Plaintiff Fails to Allege Facts Showing that Petland Kennesaw

Took Part in Directing the Affairs of the Alleged Enterprise.
Even assuming that plaintiff has alleged a RICO enterprise, she does not
allege any facts showing that Petland Kennesaw took some part in directing the
enterprises affairs. Reves, 507 U.S. at 179. Her allegations must state how
Petland Kennesaw, in particular, took part in directing the affairs of the
enterprise, rather than leveling an undifferentiated allegation at all defendants. 11
The complaint fails that requirement by lumping together Petland to mean both
Petland, Inc. and Petland Kennesaw. See Compl. intro. Furthermore, the conduct
the complaint appears to specifically attribute to Petland Kennesawtraining other
franchisees, paying royalties to Petland per a franchise contract, obtaining animals
from puppy mills, using a preferred veterinarian to examine pets before they are
sold, and selling plaintiffs one dog, see Complaint 8, 14, 18, 20-22, 29-37is
Petland Kennesaw conducting its own business affairs, not directing anyone elses.
Indeed, the complaint does not allege facts showing that any defendant
11
See, e.g., American Dental Assn v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.
2010) (affirming that plaintiff must allege facts with respect to each defendants
participation); Brooks, 116 F.3d at 1380-81 (RICO complaint must plead facts
showing the specific role of each defendant).
1614237.1
18
conducted or directed any affairs other than its own. That is largely symptomatic of
plaintiffs failure to allege any enterprise with affairs of its own that anyone could
direct (apart from defendants ordinary business). Instead of pleading facts,
plaintiffs sole attempt to satisfy the Reves requirement is the rote recitation that
[e]ach member of the Enterprise plays a distinct role in carrying out the
Enterprises activity and maintaining the fictions necessary to defraud customers.
Id. 88. The complaint contains not one plausible, non-conclusory allegation that
Petland Kennesaw directed its preferred veterinarian to lie about a pets health or
trained another franchisee how to commit fraud. And even for the enterprises
supposed ring-leader, plaintiff can only muster the following conclusory
allegation: [u]pon information and belief, Petland, Inc. directed the affairs of the
Enterprise through its franchise agreements, its training of new employees and
franchisees at high-volume locations, and its communications with co-
Defendants. Id. 90. But pleading requires more than labels and conclusions;
formulaic recitation of the elements . . . will not do. Twombly, 550 U.S. at 555.
RICO complaints alleging far greater collaboration among defendants have
failed under Reves.12 Because plaintiff fails to allege facts showing that Petland
12
In United Food & Commercial Workers Unions v. Walgreen Co., for example,
the plaintiff alleged that Walgreens pharmacy chain and a drug company (Par)
conducted an association-in-fact enterprise. The alleged common goal was to
1614237.1
19
Kennesaw directed the affairs of the alleged enterprise, the complaint fails Reves.
III. Plaintiffs Allegations of Non-Disclosure Cannot State RICO Claims.
The Court should also dismiss plaintiffs complaint because her theory of
fraud is predicated upon attempting to hold the defendants liable for failing to
disclose facts that no defendant had a duty to disclose. 13
Federal courts have repeatedly held that [a]bsent an independent duty, such
as a fiduciary duty or an explicit statutory duty, failure to disclose cannot be the
basis of a fraudulent scheme under the federal mail and wire fraud statutes. 14 That
law makes sense in the retail context. For example, no consumer could state a
RICO class action against The Varsity and its hot-dog suppliers for claiming, We
overcharge health insurers by filling prescriptions with Pars most expensive

dosage form, even where a cheaper form was prescribed. 719 F.3d 849, 853-54
(7th Cir. 2013). The Seventh Circuit affirmed dismissal because the complaint
failed to allege how Par or Walgreens conducted or directed the affairs of any
enterprise, rather than their own respective affairs. See id. at 854-55 (But nothing
in the complaint reveals how one might infer that these communications or actions
were undertaken on behalf of the enterprise as opposed to on behalf of Walgreens
and Par in their individual capacities, to advance their individual self-interests.).
13
See Compl. 96 (Defendants perpetrated their fraudulent scheme to defraud
customers by never disclosing . . . .); id. 26 (Petland conceals . . . .).
14
Cal. Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472
(9th Cir. 1987); see also Langford v. Rite-Aid of Ala., 231 F.3d 1308 (11th Cir.
2000) (retail sellers failure to disclose its pricing practices to consumers is not a
material omission that can support mail or wire fraud liability); Reynolds v. E.
Dyer Dev. Co., 882 F.2d 1249, 1252 (7th Cir. 1989) (holding that mere failure to
disclose, absent something more cannot constitute mail or wire fraud).
1614237.1
20
take pride in all of our ingredients and recipes and know that you will taste the
difference yet failing to disclose to consumers from what kind of cows the Varsity
obtained its hot dog beef and at what price.15
In the same way, because Petland Kennesaw is a retail business and plaintiff
is an ordinary retail consumer, no independent duty runs between them that
triggers a duty for Petland Kennesaw affirmatively to disclose the basis of its
pricing or details about its vendors (although Petland Kennesaw actually does
disclose that).16 Absent such a duty, courts routinely dismiss civil RICO claims
alleging that defendants should have disclosed more information about their
products or their allegedly fraudulent scheme. 17
IV. The Complaint Fails to Plead a Pattern of Racketeering Acts.
Plaintiff unsuccessfully tries to plead a pattern by alleging that defendants
15
https://www.thevarsity.com/food.
16
See Complaint n.3 (referencing Petland About Us page stating, Our puppies
come from three primary sources: . . . .); id. (HSUS estimates there are 8,000
unlicensed and unregulated breeders. These are NOT where Petland purchases
puppies.). In addition, plaintiff received a Medical Sheet at the time of purchase,
which she initialed four times, identifying the breeder of her puppy by name.
17
See, e.g., Bonilla v. Volvo Car Corp., 150 F.3d 62, 70 (1st Cir. 1998); In re
Countrywide Fin. Corp., 601 F. Supp. 2d 1201, 1218 (S.D. Cal. 2009) (dismissing
RICO claims based on non-actionable puffery and rejecting argument that
Defendants failed to disclose their overarching fraudulent scheme, relying on
California Architectural); Petland, 2009 WL 2424655, at *2 (The Court will
therefore grant Petlands motion to the extent the RICO claims are based on
allegations of non-disclosure.).
1614237.1
21
ordinary business operations regarding one puppy constitute mail and wire fraud.
Essential to any successful RICO claim are the basic requirements of
establishing a RICO enterprise and a pattern of racketeering activity. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004). To engage in a
pattern of racketeering activity, Petland Kennesaw must have participated in at
least two predicate acts of racketeering activity over a ten-year time span, the
predicate acts must be related to one another, and the predicate acts must
demonstrate a continuing nature of criminal conduct. Id.; see also 18 U.S.C.
1961(5). The alleged wrongdoing must amount to or pose a threat of continued
criminal activity. H.J. Inc. v. Nw. Bell Tel Co., 492 U.S. 229, 239 (1989).
Here, the complaint fails to allege a pattern of racketeering activity. First,
her pattern allegations are vague and lack the specificity required by
Twombly/Iqbal and Rule 9(b). See, e.g., Compl. 105 (Defendants have likely
committed thousands of acts of racketeering activity.); id. 97, 99-101.18
Second, the single paragraph that attempts to describe the general content
18
See, e.g., Brooks, 116 F.3d at 1381 ([T]he Amended Complaint fails to set forth
the time, place, and manner in which any specific predicate act occurred.); Bivens,
2009 WL 891859, at *7 (RICO complaint failed to allege mail fraud where it did
not allege, inter alia, the precise statements made in the mailings and the
content of the mailings); Perret v. Wyndham Vacation Resorts, Inc., 889 F. Supp.
2d 1333, 1341 (S.D. Fla. 2012) (dismissing under 9(b) for failure to plead, inter
alia, the precise statements made).
1614237.1
22
and dates of specific instances of the use of the U.S. mails and wires does not
plausibly plead acts of mail and wire fraud. See Compl. 98. For example, when
Petland Kennesaw charg[ed] Plaintiffs credit card for the purchase of her pet . . .
on December 10, 2015, that is not wire fraud, it is simply Petland Kennesaw
completing a sale in the ordinary course of business. Id. For the same reasons
discussed above, all of the mail and wire fraud allegations are fatally plagued by
Plaintiffs implausibly pled theory that defendants entire pet-sale business is
fraudulent. For one, those allegations fail to plead that Petland Kennesaw had the
specific criminal intent of committing wire fraud when it sold plaintiff her pet.
Third, stripped of its vague and conclusory allegations and allegations about
the ordinary operation of defendants businesses, plaintiffs complaint is still only
left with mail and wire fraud allegations about the sale of one puppy. That is not a
pattern. See H.J. Inc., 492 U.S. at 239-40; Jackson v. BellSouth Commcns, 372
F.3d 1250, 1265 (11th Cir. 2004). And allegations that similar or identical sales
occurred, without any specifics, does not satisfy the pattern requirement.
V. The Court Should Also Dismiss Plaintiffs RICO Conspiracy Claims.
In addition to dismissing plaintiffs substantive RICO counts, the Court
should also dismiss plaintiffs claims of a conspiracy to violate RICO in Counts 2
and 3. In United States v. Browne, the Eleventh Circuit held that the touchstone of
1614237.1
23
liability is an agreement to participate in a RICO conspiracy, which requires an
allegation and proof that each defendant agreed on the overall objective of the
conspiracy. 19 Similarly, Georgia law requires that a charge of RICO conspiracy be
supported with an alleged common design between the conspirators.20 In Chi v.
MasterCard International, Inc., this Court held, Where an underlying RICO claim
fails, and the plaintiff does not allege additional facts to support a RICO
conspiracy, the conspiracy claim must also fail. 21 Lawrie v. Ginn Development
Co. similarly holds that a lack of specificity on a substantive RICO claim
similarly condemns Plaintiffs conspiracy claims, which are ultimately premised
on the same fraudulent conduct.22
Plaintiff alleges no additional facts that would save her conspiracy claims.
Her complaint makes no attempt to state when, where, or how any of the
defendants supposedly reached an agreement to violate RICO, and it fails to name
19
505 F.3d 1229, 1264 (11th Cir. 2007) (outlining two methods for showing the
required agreement); see also Jackson, 372 F.3d at 1269 (failure to allege
agree[ment] to violate . . . substantive provisions of the RICO laws is fatal).
20
Pasha v. State, 273 Ga. App. 788, 790, 616 S.E.2d 135, 138 (2005).
21
No. 1:14-CV-614-TWT, 2014 WL 5019917, at *3 (N.D. Ga. Oct. 7, 2014). See
J&D Intl Trading (H.K.) Ltd. v. MTD Equip., LLC, No. 1:13-CV-2526-RWS,
2014 WL 1683375, at **12-13 (N.D. Ga. Apr. 28, 2014) (same); Fuller v. Home
Depot Servs., LLC, 512 F. Supp. 2d 1289, 1295 (N.D. Ga. 2007) (same).
22
656 F. Appx 464, 474 (11th Cir. 2016); see also Flagg v. First Premier Bank,
No. 1:15-CV-324-MHC, 2017 WL 2703856, at *10 (N.D. Ga. June 7, 2017)
(Cohen, J.).
1614237.1
24
a single individual officer or employee of any defendant who entered into such an
agreement.23 Moreover, plaintiffs conspiracy allegations fail for many of the same
reasons as her substantive allegations, such as the absence of any plausible
allegation that the defendants agreed to conspire to violate RICO instead of
agreeing to work together in lawful, for-profit business.
VI. Plaintiffs Georgia RICO Claim Fails Because No Federal RICO

Violation Exists.
The federal and Georgia racketeering acts are essentially identical.
Feldman v. American Dawn, Inc., 849 F.3d 1333, 1342 (11th Cir. 2017).
Therefore, plaintiffs failure to state any claims under the federal act requires
dismissal under the Georgia act. See Delta Air Lines, Inc. v. Wunder, No. 1:13-CV-
3388-MHC, 2015 WL 11347586, at *8 (N.D. Ga. 2015) (Cohen, J.) (federal
dismissal required Georgia dismissal).
CONCLUSION
The Court should dismiss this case under Federal Rule 12(b)(6).
23
Windsor v. Huber, No. 1:11-CV-2326-TWT, 2011 WL 4436491, at *2 (N.D. Ga.
Sept. 21, 2011).
1614237.1
25
Respectfully submitted this 29th day of September, 2017,
/s/ John E. Floyd

John E. Floyd
Georgia Bar No. 266413
Steven J. Rosenwasser
Fredric J. Bold, Jr.
BONDURANT, MIXSON & ELMORE, LLP
3900 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, Georgia 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
Email: floyd@bmelaw.com
rosenwasser@bmelaw.com
bold@bmelaw.com
Counsel for Defendants BKG Pets,

Inc. and Pets BKG LLC
1614237.1
26
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the foregoing document has been
prepared in accordance with the font type and margin requirements of Local Rule
5.1(B) of the Northern District of Georgia, using a font type of Times New Roman
and a point size of 14.
/s/ John E. Floyd

John E. Floyd
1614237.1
27
CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of September, 2017, I electronically
filed the foregoing BRIEF IN SUPPORT OF DEFENDANTS BKG PETS,
INC.S AND PETS BKG LLCS MOTION TO DISMISS with the Clerk of the
United States District Court, Northern District of Georgia, using the CM/ECF
system, which will send notification of such filing to counsel of record as follows:
Michael I. Fistel, Jr. Henry D. Fellows, Jr.

William W. Stone Michael C. Gretchen
David Weisz FELLOWS LABRIOLA LLP
JOHNSON & WEAVER, LLC Suite 2300 South Tower
40 Powder Springs Street 225 Peachtree Street, N.E.
Marietta, Georgia 30064 Atlanta, Georgia 30303
michaelf@johnsonandweaver.com hfellows@fellab.com
williams@johnsonandweaver.com mgretchen@fellab.com
davidw@johnsonandweaver.com Attorneys for Defendant Petland, Inc.
Attorneys for Plaintiff
Robert G. Cohen
Tamara Y. Feliciano (application for pro hac vice to be filed)
TAMARA FELICIANO AND ASSOCIATES KEGLER, BROWN, HILL, & RITTER CO., L.P.A.
5755 North Point Parkway, Suite 52 65 East State Street, Suite 1800
Alpharetta, Georgia 30022 Columbus, Ohio 43215
tamarafelicianoesq@gmail.com rcohen@keglerbrown.com
Attorneys for Plaintiff Attorneys for Defendant Petland, Inc.
Kelsey Rinehart Eberly Robert A. Luskin

ANIMAL LEGAL DEFENSE FUND GOODMAN MCGUFFEY LLP
525 E. Cotati Avenue 3340 Peachtree Road N.E., Suite 2100
Catati, California 94931 Atlanta, Georgia 30326-1084
Attorneys for Plaintiff rluskin@GMLJ.com
Attorneys for Defendant Pawsitive Solutions, Inc.
1614237.1
28
Anthony T. Eliseuson Humberto (Bert) Ocariz

ANIMAL LEGAL DEFENSE FUND SHOOK HARDY & BACON
1755 W. Roscoe St., Unit 3 201 S. Biscayne Blvd., Suite 3200
Chicago, Illinois 60657 Miami, Florida 33131
anthony.eliseuson@dentons.com hocariz@shb.com
Attorneys for Plaintiff Attorneys for Defendant Pawsitive Solutions, Inc.
Jessica J. Sleater
ANDERSEN SLEATER SIANNI LLC
1250 Broadway, 27th Floor
New York, New York 10001
jessica@andersensleater.com
Attorneys for Plaintiff
/s/ John E. Floyd

John E. Floyd
1614237.1
29

Petland Motion To Dismiss

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Petland Motion To Dismiss

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Case 1:17-cv-02828-MHC Document 16-1 Filed 09/29/17 Page 1 of 36

UNITED STATES DISTRICT COURT

ROSALBA CISNEROS, on behalf of

BRIEF IN SUPPORT OF DEFENDANTS BKG PETS, INC.S AND

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1

STATEMENT OF FACTS AND PLAINTIFFS ALLEGATIONS ....................................3

A. Petland Kennesaw .............................................................................3

ARGUMENT AND CITATION TO AUTHORITY .........................................................9

A. Plaintiffs RICO Fraud Claims Must Satisfy Both

B. The Complaints Fails to Satisfy Twombly/Iqbal or

i. Plaintiffs Complaint Fails Rule 9(b)s Pleading

ii. Plaintiff Ignores the Obvious Alternative Explanation .......15

II. The Complaint Fails to Plead that Petland Kennesaw Conducted

A. Plaintiff Must Allege Facts Showing that Petland Kennesaw

B. Plaintiff Fails to Allege Facts Showing that Petland

III. Plaintiffs Allegations of Non-Disclosure Cannot State RICO

IV. The Complaint Fails to Plead a Pattern of Racketeering Acts ..................21

V. The Court Should Also Dismiss Plaintiffs RICO Conspiracy

VI. Plaintiffs Georgia RICO Claim Fails Because No Federal RICO

AARP v. Am. Family Prepaid Legal Corp., Inc.,

Almanza v. United Airlines, Inc.,

Ambrosia Coal & Constr. Co. v. Morales,

American Dental Assn v. Cigna Corp.,

Avery v. Chrysler Motors Corp.,

Bell Atlantic Corp. v. Twombly,

Bonilla v. Volvo Car Corp.,

Brooks v. Blue Cross & Blue Shield of Fla., Inc.,

Cal. Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.,

Chandler v. Secy of Fla. Dept of Transp.,

Chi v. MasterCard International, Inc.,

Club Car, Inc. v. Club Car (Quebec) Import, Inc.,

Delta Air Lines, Inc. v. Wunder,

Feldman v. American Dawn, Inc.,

Flagg v. First Premier Bank,

Fuller v. Home Depot Servs., LLC,

H.J. Inc. v. Nw. Bell Tel Co.,

In re Countrywide Fin. Corp.,

J&D Intl Trading (H.K.) Ltd. v. MTD Equip., LLC,

Jackson v. Bellsouth Telecomms.,

Langford v. Rite-Aid of Ala.,

Lawrie v. Ginn Development Co.,

Martinelli v. Petland, Inc.,

Metro. Transp. Auth. v. Contini,

Montoya v. PNC Bank, N.A.,

Parm v. Natl Bank of Cal., N.A.,

Perret v. Wyndham Vacation Resorts, Inc.,

Ray v. Spirit Airlines, Inc.,

Reves v. Ernst & Young,

Reynolds v. E. Dyer Dev. Co.,

Snow v. DirecTV, Inc.,

Thrailkill v. Champion Ford, Inc.,

United Food & Commercial Workers Unions v. Walgreen Co.,

United States v. Browne,

FED. R. CIV. P. 9(b) ............................................................................... 1, 9, 10, 22

FED. R. CIV. P. 12(b)(6) ...................................................................................1, 25

7 U.S.C. 2131 ......................................................................................................3

18 U.S.C. 1961 ..................................................................................................22

18 U.S.C. 1962 ..............................................................................................9, 17

INTRODUCTION AND SUMMARY OF ARGUMENT

vendors. Thus, unable legitimately to challenge Petlands purchasing practices, the

attempts to contrive RICO allegations on behalf of a purported nationwide class,

as a soapbox in service of their social-policy goals.

Specifically, plaintiffs complaint asserts that Petland, PAWSitive, every